Flaws in changes to rape law

Hansard: 18 September 2007 ASSEMBLY

Mr CLARK (Box Hill) — The Crimes Amendment (Rape) Bill 2007 amends the Crimes Act in relation to the offence of rape and various other sexual offences in two particular respects. The first is to change the provisions relating to the directions that a judge is required to give to a jury in various circumstances in relation to these offences. The second is to change an aspect of the definition of the mental element an accused person must have in order to constitute guilt in the offence of rape or various other sexual offences.

Rape and these various related sexual offences are of course highly traumatic offences, causing great distress to their victims, distress which occurs not only at the time of the initial offence but also during the various processes and steps that follow in terms of reporting, investigation and very often a trial upon the bringing of a prosecution. A series of reforms over recent years has attempted to amend the law in various respects to achieve the objective of fairer outcomes and trial and pretrial procedures and investigatory arrangements that minimise the distress and trauma suffered by victims. These reforms were ones that began many years ago, going back at least to the time when the Honourable Haddon Storey was the Attorney-General of this state and continuing through the 1990s to the current day.

There has in recent times been a considerable increase in the number of reported rape offences in Victoria based on the various police actual and provisional crime statistics. In the year 1999-2000 there were 1170 reported instances of rape. By 2006-07 — the latest figures that have been published — that had risen to 1631 reported offences, an increase of 39.4 per cent.

That is a very substantial increase, obviously an increase far in excess of the increase in population over that time and therefore an increase in per capita terms as well as in absolute terms.

The question that needs to be asked, answered and responded to is: why is it that there has been such a substantial increase in the number of reported rape offences? It may be said that the increase has been due to a greater willingness on the part of victims to come forward and report offences, and that may well be an explanation. However, it is worth making the point that, along with the increase in the number of reported rape offences, there has also been a very substantial increase in the number of assaults reported over a similar period, an increase of 56 per cent.

Whether there is a nexus between the increase in assaults and the increase in rapes is a question that needs to be asked, as it may indicate that the increase in the number of reported offences is in fact reflective of an increase in the actual incidence of rape that is occurring in the community and not simply an increase in the level of reporting.

In any changes that are made to the law relating to rape and other sexual offences there are of course a number of considerations that need to be balanced, and that requirement was put, in the report of the Victorian Law Reform Commission Sexual Offences — Final Report, which was released by the commission in August 2004, at page xxii of the executive summary, in the following terms:

The recommendations in this report are intended to achieve the twin goals of providing decent treatment for complainants, who perform a public service when they report offences and give evidence in court, and ensuring a fair trial for people accused of sexual offences.

This report made a wide range of recommendations that built on previous changes to the law in this area, which as I mentioned earlier have been made over previous decades. There have been three pieces of legislation brought to this house by the government in response to the report of the law reform commission, and the commission has described the stages of the legislation in a report entitled Sexual Offences — Implementation Report in the following terms:

This program has been divided into three stages.

The first series of amendments mainly put into effect the recommendations in relation to children and people with a cognitive impairment, the second stage focuses on adult complainants and the third makes changes to the ‘mental element’ in rape cases.
Previously this Parliament has addressed and passed the Crimes (Sexual Offences) Act 2006 and the Crimes (Sexual Offences) (Further Amendment) Act 2006, and I certainly do not intend to recanvass the matters that were dealt with in those pieces of legislation. However, the bill now before us will give effect to what the Law Reform Commission described as the third stage of the government’s actions. It is worth making the observation that the Law Reform Commission, in the Sexual Offences — Implementation Report that I have referred to, described the government’s actions in the following terms:

The Victorian government has been quick to implement many of the legislative reforms.
I must express some surprise at the use of the term ‘quick’ to describe the Victorian government’s response to the commission’s report, given that this report was launched in August 2004, the first of the two items of legislation I have referred to did not reach the Parliament until late 2005 and was not passed until 2006, and the second was not passed until later in 2006. Of course we are now in September 2007, when the third and final stage of the legislation has reached the Parliament.

As I said at the outset, the changes being made by this bill are in two main parts. The first relates to jury directions and the second relates to the mental element of an accused that will constitute the offence of rape and other sexual offences.

The changes in relation to jury directions are made by amendments that substitute a new section 37 in the Crimes Act and insert two new sections, section 37AAA and section 37AA, in the act.

The amendments that are being made are quite complex. Many of them simply restate the thrust of existing provisions in different words to accommodate the new structure of the legislation; other provisions make substantive additions to the law. Overall the amendments break up current section 37 into three new sections, with many of the main provisions being in the two new sections.
In terms of the new elements being inserted by the bill, in relation to jury directions proposed section 37 requires that:

(3) A judge must relate any direction given to the jury of a kind —

covered by these provisions to —

(b) the elements of the offence being tried in respect of which the direction is given …

It may be thought that that is self-evident, but the government clearly thinks it is preferable to specify that requirement explicitly rather than leaving it implicit in the previous legislation.

The next set of new provisions I refer to are those contained in proposed section 37AAA. The amendments in proposed paragraphs (a), (b) and (c) require the judge to direct the jury, where relevant, on:

(a) the meaning of consent set out in section 36 —

of the act:

(b) that the law deems a circumstance specified in section 36 to be a circumstance in which the complainant did not consent;

(c) that if the jury is satisfied beyond reasonable doubt that a circumstance specified in section 36 exists in relation to the complainant, the jury must find that the complainant was not consenting …

Section 36 of the existing act defines the meaning of ‘consent’, and that is a provision that was inserted into the Victorian legislation back in 1991. It sets out various circumstances in which a person does not freely agree to the act and therefore does not consent to the act that has occurred. That covers situations such as a person submitting as a result of fear or where they are asleep, unconscious or so affected by alcohol or another drug that they are incapable of freely agreeing. The amendments that are being made by these provisions require the judge to specifically canvass those issues when it is relevant to the trial.

In proposed section 37AA it is to be made explicit that:

… the judge must direct the jury that in considering whether the prosecution has proved beyond reasonable doubt that the accused was aware that the complainant was not consenting or might not have been consenting, that the jury must consider —
various factors. Some of those factors are in the existing legislation, but it requires that the jury must consider ‘whether that belief was reasonable in all the relevant circumstances’, which is the existing wording, having regard to two new factors, which are:

(i) in the case of a proceeding in which the jury finds that a circumstance specified in section 36 exists … whether the accused was aware that that circumstance existed in relation to the complainant; and

(ii) whether the accused took any steps to ascertain whether the complainant was consenting or might not be consenting, and if so, the nature of those steps; and

(iii) any other relevant matters.

I have gone into some detail in setting out what the bill does in this respect because it is relevant to a consideration of how it will work in practice. While what is being required under the legislation is logically correct as a matter of law, the opposition has some concern as to how these provisions will operate in practice. They are quite complex, as would be gathered from the description I have given of them.

A judge needs to ensure that his or her directions to a jury comply with the legislation.

If the judge’s directions do not comply with the legislation, that can give rise to an appeal, in particular by a convicted accused person, and that of course can lead to injustice and certainly to a prolongation of the trial process, to the distress of the victim and others involved and at a cost to the legal system and the state. The fact that the legislation relating to directions is being restructured and respecified in the way I have described also means that practitioners will have to come to grips with the new requirements, as will judges, and there will be a transitional cost and effort and complexity involved in that change.

It is a bit ironic in the context of these amendments to note that one of the aspects of the Law Reform Commission report which has given rise to these amendments is that covered in chapter 7 under the heading ‘Clarity, length and understandability of jury directions’.

The commission raised the concern that directions need to be clear and understandable to the jury and that regard has to be had to the length of the charges involved. The commission is of course absolutely right in drawing attention to this issue, and it is something that needs to be borne in mind in making any legislative changes and in considering how these measures will operate in practice. That is certainly something that I raise and put on the record. How these measures work in practice will have to be carefully monitored, because they create the risks that I have referred to.

In this context it is also worth referring to some views that have been expressed by the Law Institute of Victoria. In a letter sent to me by email dated 13 September 2007, copies of which also went to the Attorney-General, to the Leader of The Nationals and to the Greens spokesman on Attorney-General’s matters, the institute raised some concerns about the legislation. It said that it considered that ‘the changes to jury directions in sexual offence trials are largely superficial’. It also said that it understood ‘that the Attorney-General is considering a reference to the Victorian Law Reform Commission on jury directions in criminal trials’. It submitted that jury directions in sexual offence trials should be considered in the context of this broader reform initiative. The fact that the law institute has concerns about this legislation is certainly something that needs to be noted.

The second principal aspect of the bill, which I referred to earlier, is a change to the mental element that can constitute the offence of rape. This seems to be a straightforward and welcome amendment that closes a potential loophole in the legislation. The loophole is the potential for an accused to argue that he, or in some instances she, should not be found guilty of an offence because the accused did not give any thought at all to the question of whether the victim was consenting or might not be consenting.

This is also something that arose out of the final report of the Law Reform Commission at pages 410 and following. The commission referred to the decision in an unreported Supreme Court case of R v. Ev Costa, which the commission cited as holding that there must be conscious advertence to the question of the complainant’s consent in order to satisfy the mental element. The commission made the point in paragraph 8.13 that:

No accused should be acquitted just because he has completely failed to turn his mind to the question of consent.
That seems to be a very sound point, and the loophole should be closed. It is perhaps not one that is likely to occur in a significant number of cases, but it is clearly a potential defect in the existing legal regime. Therefore the move to remedy that defect is welcome. It may be said to be akin to the element of recklessness in relation to some other offences such as murder, which in Victoria can be committed not only through an intention to kill but also through reckless conduct and not caring whether or not that conduct might give rise to a fatality. Recklessness is a well-established principle in the context of homicide.

Opposition members were told at a very helpful briefing provided to us by officers of the department that this amendment was not directly an insertion of a requirement of recklessness, simply because the mental element for rape is structured differently in Victoria compared to other jurisdictions, but certainly it is an analogous concept. Just as reckless conduct in the context of homicide should constitute the offence, so recklessness in the context of rape should constitute the offence. As I say, this is an aspect of the legislation that is welcomed by the opposition.

In conclusion, as I said at the outset, this is the third of three pieces of legislation that respond to the Law Reform Commission’s report. There are a number of aspects of the commission’s recommendations that have not been adopted by the government, including some of its recommendations in relation to consent and the definition of the mental element of the offence. The alteration to the element that I have referred to is something that we welcome.

We do, however, urge the government to pay close attention to how the changes to the aspects of the legislation relating to jury directions operate in practice, because while the objectives of that part of the legislation are understood and appear to be correct and logical as a matter of law, their practical implications need to be considered.